- This action was brought by RPEA on behalf of those individuals who retired from the State as the employer prior to the effective of date of regulations promulgated by the President of the New York State Civil Service Commission [October 1, 2011] under color of the 2011 amendment to CSL Section 167.8.
- The 2011 amendment to Civil Service Law Section 167.8 must be applied in a manner consistent with the doctrine of legislative equivalency, whereby the provisions of Section 167.1(a) control except as otherwise specifically authorized to reflect a term and condition of employment set out in a collective bargaining agreement. City of Plattsburgh v Local 788, 108 AD2d 1045 is an example of the application of the doctrine. In Plattsblurgh the Appellate Division held that the procedure for determining an individual’s seniority for the purposes of layoff as set out in §80.1 of the Civil Service Law can neither be diminished nor impaired by the terms of collective bargaining agreements in contrast to the Legislature’s amending §80 providing for an alternate means of determining such seniority with respect to police officers employed in certain police departments as set out in subdivisions 1-a through 1-d of §80.*
- Prior to its 2011 amendment, Section 167.8 authorized extending any “negotiated increases” in the State’s cost of premium or subscription charges for health insurance to employees then in active service not subject to a collective bargaining agreement - i.e., unrepresented employees in the Executive, Legislative and Judicial branches of government. Significantly said Section 167.8 specifically provided that such “negotiated increases” shall not be provided to State employees already retired nor upon the retirement of any said unrepresented employees and, unless otherwise specifically otherwise provided in the collective bargaining agreement, employees in the relevant collective bargaining unit retiring during the life of the collective bargaining agreement. The State’s contribution rates to be made on behalf of all such retirees was, and continues to be, set out in Civil Service Law Section 167.1(a).
- The 2011 amendment to Civil Service Law Section 167.8 provided that a collective bargaining agreement between the State and an employee organization could modify such State costs – i.e., the State’s cost could be either increased or decreased – and the President of the State Civil Service Commission, with the approval of the Director of the Budget, could extend the modified state cost of premium or subscription charges for employees or retirees not subject to such an agreement and was authorized to promulgate the necessary rules or regulations to implement this provision with respect to employees in service on or after the effective date of such regulation.
- It is well settled that any employee of the State as the employer who retired prior to the effective date of any such agreement is not an individual within the relevant collective bargaining unit and would not be subject to any negotiated terms and condition of employment set out therein.** Accordingly, at best the only individuals to whom the provisions of Civil Service Law Section 167.8 as amended could apply with respect to the State’s contributions for health insurance are  employees of the State in the relevant collective bargaining unit currently in active service;  unrepresented employees of the State to whom the provisions of the collective bargaining agreement modifying the State’s contributions have been extended at the discretion of the President of the Civil Service Commission with the approval of the Director of the Budget currently in active service; and  employees of the State described in  and  above who retired, or become retired, during the life of the relevant collective bargaining agreement. In contrast, State’s contribution for health insurance on behalf of employees of the State who retired from State service prior to the effective date of said Regulations are set out in Civil Service Law Section 167.1(a), which provision have not been amended by the State Legislature.
- Any effort by the State to amend the provisions of Section 167.1(a) insofar as individual who retired from the State as the employer prior to October 1, 2011, the effective date of a regulation implementing the terms and conditions of a collective bargaining agreement with respect to the State’s contributions towards health insurance premiums and subscription charges, is a nullity insofar as such retirees are concerned as a rule or regulation may not amend provisions of law set out in a statute but may merely provide for its lawful administration and application. So said the Court of Appeals in Torre v County of Nassau, 86 NY2d 421, wherein the court, noting the doctrine of legislative equivalency, held that a position created by a legislative act can be abolished only by a correlative legislative act. Applying the doctrine in this instance means that the State's rates of contributions for health insurance, having been set out in Civil Service Law Section 167.1(a) by the State Legislature, may only be changed by a legislative act by the State Legislature. Such was the case when the Legislature so acted in 1983*** and amended Civil Service Law Section 167.1(a) mandating a lower rate of contributions by the State for individual coverage on behalf of State employees retiring on or after January 1, 1983.
* Legislation extending similar procedures to certain members of other police agencies in the event of a layoff is pending in the Assembly [A9887-2011] and in the Senate [S7075-2011]. See http://publicpersonnellaw.blogspot.com/2012/04/legislation-proposed-to-provide-for-new.html for a NYPPL summary of these bills.
** http://publicpersonnellaw.blogspot.com/2012/04/health-insurance-benefit-enjoyed-by.html summarizes a State Supreme Court decision in which the court held that health insurance benefits enjoyed by retired individuals are not subject to collective bargaining between the employer and the employee organization absent the consent of all the parties [DiBattista v County of Westchester, 35 Misc3d 1205].
*** Chapter 14, Laws of 1983, retroactive to December 15, 1982 to accommodate the premiums due effective January 1, 1983.
Mr. Karlin’s article is posted on the Internet at: